Respondent changing name causes issue with proceedings

[flint]

X is currently taking action and submitted an ET1 in a breach of contract claim. The claim itself is pretty black and white. The query relates to a point of procedure:

EC didn't result in a settlement. X submitted an ET1 to the tribunal and this was accepted. The respondent didn't provide an ET3 but has continued to indicate they'd still be willing to settle.

A week before the deadline for the ET3 the respondent changed its company name, the registered office and company number remain the same. The respondent didn't notify the claimant, ACAS or the tribunal of this change.

A week later and when reviewing the case after the ET3 deadline the J wrote to X and advised as they couldn't locate and validate the respondent (looking by company name on companies house) they were going to strike out unless X could provide a name for the respondent or show cause why the name should remain as on the ET1 (the original company name).

X wrote back and advised of the name change with companies house which had only recently happened (wrong footing the proceedings). The J responded and asked X that if they were suggesting there had been a transfer of liabilities under TUPE to the new name then they would consider adding the new name as a 2nd respondent on the ET1.

The respondent is dragging its feet on agreeing the settlement and the hearing date is only a month away, whilst a settlement may well be reached X needs to make sure the claim still proceeds, if necessary to the wire.

The questions relating to this case are:

1) Does TUPE apply in this circumstance as the judge has asked?

2) As the ET1 only uses name and address it does seem open to this type of change creating problems. Is there any case law to provide guidance on respondents changing their names during proceedings?

3) The Companies Act 2006 s 81(3) states a company cannot avoid legal proceedings through a change of name, would this also apply (as additional cause) for allowing the new respondent name on the ET1 and for the case to proceed?

[Johnboy007]

Re: Respondent changing name causes issue with proceedings

The Companies Act 2006 s 81(3) sounds good to me. It states.....
184.This section, which replaces sections 28(6) and 32(5) in part and, in total, section 28(7) of the 1985 Act, provides that the new name is effective as soon as the altered certificate of incorporation is issued. It also provides that the change of name does not affect the company’s rights or obligations or legal proceedings by or against it in its previous name.
If you lose in the ET, you can always sue through the small claims court

[flint]

Re: Respondent changing name causes issue with proceedings

Thanks for your response Johnboy007, I am very grateful.

I'm still perplexed though by the name change and how much such a simple thing can derail a perfectly sound legal action.

I am of a mind to point out the Companies Act to the Judge since it is very clear that a company cannot change name and then "avoid" legal action.

The judge clearly has a view that TUPE applies although it is hard for me to see how within the TUPE legislation itself- this must be based on their learned interpretation or case law. The easy thing would be to simply say "yes" to the Judges question, but that could invite challenge from the respondent's counsel if on rocky legal ground.

My view/worry for what it is worth is that TUPE doesn't apply here and the Judge is wrong, (there isn't a change of company owner, it is the same company- they have just changed name) the Companies Act does however apply 100% and makes any discussion on TUPE irrelevant in the context of the case. How on earth do you enter into that argument though when we are in the case review stage!? It could invite the judge to not allow the change to the ET1 on a point of procedure (since they specifically asked about TUPE) strike out and force the need for an appeal- Judges have been known to be wrong...

I cannot believe the Judge isn't aware of the Companies Act relevance (maybe they are?)? What if there is some obscure precedent where TUPE has been used before and the Judge is right, meaning a very simple response back would keep the case on track?

I suppose the question could be rephrased as does TUPE apply in the case of a company changing name just in the course of normal business? This is an open question to the forum, any help please? Has any union raised this with regard to companies changing names?

Companies change names all the time, so strictly speaking and to avoid any issues later on the employment contracts (written terms) should be updated with new names within a certain period (certainly with customers there should be at least a notification and maybe even a variation to contract), following that line then there should be a transfer of undertakings from the terms of employment in the old company name to the new name for existing or previous employees? Even if the company itself is the same one and has the same owners. So does TUPE apply in the sense that "of course there is a transfer of undertaking" even if not expressly covered within the regulations.

The very worrying thing here is that a company can simply change its name post the filing of an ET1 to halt a perfectly sound employment tribunal action, if this case doesn't proceed then that is a get out of jail free card for less than ethical companies in the UK- much easier than winding a company up and "Phoenixing" to avoid the risk of paying costs if they know they'll lose a case, just change the name after the ET1 has been issued then never bother to even submit an ET3 as you'll know the thing will grind to a halt anyway as you'll make the ET1 incorrect as it will have the "wrong name". This could be very simple to do as the names only need to change in the tiniest bit to render the ET1 invalid if one follows the logic.

Any help on the question of TUPE and company name changes is appreciated?

[Johnboy007]

Re: Respondent changing name causes issue with proceedings

The Companies Act 2006 s 81(3) was in force before TUPE commenced with your ex company, therefore the Companies rights or obligations or legal proceedings by or against it in its previous name, could not be legally avoided.
YES.... this is the test case....
The Companies Act was in place in legislation, before TUPE, so it has to be allowed in evidence, as it cannot be repealed, or disputed by a Tribunal Judge.
That is my opinion, and I think it is sound.

[flint]

Re: Respondent changing name causes issue with proceedings

Awesome. Thank you.

I completely agree with your point, the response doesn't need to be in for another few weeks and the Judge won't act on anything before that date so there is some time to prepare a very tight response letter.

In your view (or anyone else's on this forum) would TUPE ever be relevant for a company changing name? What is the procedure for companies changing names in the normal course of business with regard to their employees? Does it require written notice and then a change to the written terms of employment within a fixed time so comes under TUPE?

Many thanks

[Johnboy007]

Re: Respondent changing name causes issue with proceedings

Awesome. Thank you.

I completely agree with your point, the response doesn't need to be in for another few weeks and the Judge won't act on anything before that date so there is some time to prepare a very tight response letter.

In your view (or anyone else's on this forum) would TUPE ever be relevant for a company changing name? What is the procedure for companies changing names in the normal course of business with regard to their employees? Does it require written notice and then a change to the written terms of employment within a fixed time so comes under TUPE?

Many thanks

TUPE would not be relevant just for a name change.
TUPE is only relevant on changing the business to a new company.
All employees terms and conditions are protected and transfer to the new company.
Have a look at this link..
http://www.acas.org.uk/media/pdf/m/t...PE-process.pdf

[Johnboy007]

Re: Respondent changing name causes issue with proceedings

Have you actually checked the company number with both names?
Are they identical, if so there has been no TUPE.
So this and the Companies Act 2006, should be fundamental in your response letter to the Tribunal.

[Johnboy007]

Re: Respondent changing name causes issue with proceedings

Hi Flint,
If the two names are the same company, you may want to start your response letter to the tribunal thus..

(Name of Tribunal)
Address
Case Ref No:
Date
Dear Sir,
It is submitted that (name of old company) having changed its name to (new name) are still liable to proceedings already started in this Tribunal Court on (date). In accordance with the Companies Act 2006 as stated below,
Section 81 states,
81Change of name: effect
(1)A change of a company's name has effect from the date on which the new certificate of incorporation is issued.
(2)The change does not affect any rights or obligations of the company or render defective any legal proceedings by or against it.
(3)Any legal proceedings that might have been continued or commenced against it by its former name may be continued or commenced against it by its new name.
It is further submitted, that TUPE does not apply in this case, as (old company name) have not transferred Business to another company, but merely changed its name to (new name change).
Therefore It is requested that this case proceed in accordance to legislation currently in force.

[flint]

Re: Respondent changing name causes issue with proceedings

Yes, registered offices and company numbers remain the same. Checking through previous letters to the tribunal this wasn't necessarily spelled out 100%, although a check on Companies house on the new company name would confirm it and a copy of the CH name change details were provided.

Thank you though. As I thought, this indicates the Employment Judge is incorrect in considering adding the new company name as a 2nd respondent, TUPE as the cause. Unless there is a reason why the ET1 1st respondent name has to remain due to a procedural thing unique to employment tribunals?

Either way the respondent's name change should not be a barrier to a case continuing. It is a brave person who accuses a Judge of error so a very carefully worded response is required!

[Johnboy007]

Re: Respondent changing name causes issue with proceedings

Yes, registered offices and company numbers remain the same. Checking through previous letters to the tribunal this wasn't necessarily spelled out 100%, although a check on Companies house on the new company name would confirm it and a copy of the CH name change details were provided.

Thank you though. As I thought, this indicates the Employment Judge is incorrect in considering adding the new company name as a 2nd respondent, TUPE as the cause. Unless there is a reason why the ET1 1st respondent name has to remain due to a procedural thing unique to employment tribunals?

Either way the respondent's name change should not be a barrier to a case continuing. It is a brave person who accuses a Judge of error so a very carefully worded response is required!

Just give him the letter as above, carefully worded to suit your case.
It is not accusing the Judge of error, it is merely pointing out legislation, which he is obliged by his oath of office to follow.
One of the major differences to a court is that a full employment tribunal consists of three members: an employment judge who is legally qualified and two wing members. One wing member must come from an employer background and the other from a trade union background. The wing members are designed to bring practical employment experience to the tribunal’s decision. Most people are surprised to find that no wigs or gowns are worn in the tribunal. Like courts, tribunal hearings usually sit in public.
The case should now proceed under the new name.
So it would be called 'Brown Bread, formally known as Smith's Crisps' or whatever the names are or were.

[flint]

Re: Respondent changing name causes issue with proceedings

Case update and one more question,

Dear Johnboy007, following your advice I submitted the letter to the tribunal. The tribunal have responded by acknowledging and noting the communication and stating that no 2nd respondent will be added. There was no comment on the assertion of the Companies Act.

As there hasn't been a Strike Out notice issued, I would expect one if the case had been, I am assuming this case will now proceed again. The tribunal hasn't requested any further information and the hearing is now just over a week away.

Final written submissions are being made.

Quick question on protocol if I may?

The Respondent has not resisted the claim. Would I be correct now to assume that in such a circumstance the Respondent has no right to play a part in putting together or agreeing the contents of a bundle? If they do not, following expiry under Rule 16 and then Rule 21 (3) would they then be barred from taking part any further, meaning the claimant side need now only ensure the tribunal has enough detail on which to base a judgement, including the bundle?

[Kati]

Re: Respondent changing name causes issue with proceedings

Case update and one more question,

Dear Johnboy007, following your advice I submitted the letter to the tribunal. The tribunal have responded by acknowledging and noting the communication and stating that no 2nd respondent will be added. There was no comment on the assertion of the Companies Act.

As there hasn't been a Strike Out notice issued, I would expect one if the case had been, I am assuming this case will now proceed again. The tribunal hasn't requested any further information and the hearing is now just over a week away.

Final written submissions are being made.

Quick question on protocol if I may?

The Respondent has not resisted the claim. Would I be correct now to assume that in such a circumstance the Respondent has no right to play a part in putting together or agreeing the contents of a bundle? If they do not, following expiry under Rule 16 and then Rule 21 (3) would they then be barred from taking part any further, meaning the claimant side need now only ensure the tribunal has enough detail on which to base a judgement, including the bundle?

Hi flint, I'm sure [MENTION=50162]Johnboy007[/MENTION] will answer your question as soon as he is able

Kati x

[Johnboy007]

Re: Respondent changing name causes issue with proceedings

Hi,
The tribunal require both sides to submit their cases in the time frame stipulated.
If one side fails to do so, without giving a very good reason, which is acceptable to the tribunal.
Then they will rule according to the evidence submitted.
So in your case if there is no objection from the company, then the verdict should be to your advantage.
Assuming your claim is sound and legal.
JB